CHILDREN'S RIGHTS

The law of childhood is complex, but as a general legal proposition, a child is someone who has not yet reached the age of civil majority. Each state has the authority to determine the age of majority for its own residents, and in most states that age is now eighteen. Prior to 1971, the age of majority was typically twenty-one, but after the ratification of the twenty-sixth amendment, which gave eighteen-year-olds the right to vote in federal elections, most states lowered the age of majority, as well as the voting age for state elections.

In general, children have less liberty than adults and are less often held accountable for their actions. Parents have legal power to make a wide range of decisions for the child, although they are held responsible by the state for the child's care and support. Children have a special power to avoid contractual obligations but are not normally entitled to their own earnings and cannot manage their own property. Moreover, persons younger than certain statutory limits are not allowed to vote, hold public office, work in various occupations, drive a car, buy liquor, or be sold certain kinds of reading material, quite apart from what either they or their parents may wish.

Although a variety of civic and personal rights accrue at the age of majority, rights to engage in various "adult" activities may occur either before or after the age of eighteen. For example, many states restrict the legal access of nineteen-and twenty-year-olds to alcoholic beverages. On the other hand, most states permit sixteen-and seventeen-year-olds to secure licenses to drive automobiles. State child labor laws typically permit young people who are sixteen or seventeen to work, particularly outside of school hours, although federal law prohibits the employment of children under eighteen in hazardous occupations. A minor who is self-supporting and living away from home may, through emancipation, obtain a broad range of adult rights.

When advocates speak of children's rights, they may have in mind either of two quite contradictory notions. One notion focuses on children's basic needs, and the obligations to satisfy those needs. The other focuses on autonomy and choice.

At times, the word "right" is used to describe the duties of others—typically parents or state officials—to satisfy what are seen as a child's basic needs. Thus, claims are made that a child has or should have a legal right to education, adequate food and shelter, and even love, affection, discipline, and guidance. The federal Constitution has not been interpreted to give a child a substantive right to adequate education or care, although state law sometimes creates such duties. For example, every state provides for free public education, typically through high school, and many state constitutions require as much. Although the Supreme Court decided in san antonio independent school district v. rodriguez (1973) that education is not a "fundamental" right, at least for purposes of requiring strict scrutiny under the equal protection clause, the Court acknowledged in brown v. board of education (1954) that education is "perhaps the most important function of state and local governments." There is no constitutional right to parental love, but opinions such as pierce v. society of sisters (1925) have suggested that children as well as parents have an interest of constitutional dimension in preserving the parent-child relationship. State child-neglect statutes do impose on parents an obligation to provide adequate custodial care. In all events, a child's "right" to such things as an education or minimally adequate care has little to do with the protection of choice on the part of a particular child. A judge usually does not ask a physically abused child whether she wants to remain with her parents when the responsible authorities believe they cannot protect her from further harm if she remains at home. Compulsory education laws and child labor laws do not give an unhappy eleven-yearold child the legal right to pursue an education by dropping out of school and taking a job.

A second, very different, notion of "children's rights" emphasizes autonomy, choice, and liberty. Claims asserting this sort of right have arisen in a variety of contexts: procedural claims in juvenile proceedings and in schools (see goss v. lopez) ; choices about abortion or birth control; access to reading material (see ginsberg v. new york) ; and involvement in political protests (see tinker v. des moines school district). Usually the challenge is to some form of state paternalism; but sometimes the minor's claim involves the assertion that he should have the "right" to act independently of his parents. Because the liberty of minors is much more restricted than that of adults, reformers have sometimes asserted that adolescents should have the right to adult status, at least in particular settings. A few have even suggested a children's liberation movement to end the double standard of morals and behavior for adults and children.

The definition of "children's rights" necessarily involves the allocation of power and responsibility among the child, the family, and the state. Taking contemporary constitutional doctrine at face value, three basic principles bear on this allocation. The first principle concerns the children themselves, and the notion that as individuals they have constitutional rights. The Supreme Court declared in in re gault (1967), the seminal children's rights case, "whatever may be their precise impact, neither the fourteenth amendment nor the bill of rights is for adults alone."

The second principle concerns parents and the notion that parents have primary authority over the child. Children are part of families, and our traditions emphasize the primacy of the parental role in child-rearing. The rights of children cannot be defined without reference to their parents. The Court has suggested that parental authority also has a constitutional dimension: the state may not intrude too deeply into the parent-child relationship. Drawing on this principle, the Court held in wisconsin v. yoder (1972) that Wisconsin could not compel children to attend public schools when their old-order Amish parents believed that public schooling interfered with their raising of their children as their religion dictates. Nor may a state require all children to attend public school when there are private schools that meet legitimate regulatory standards.

The third principle concerns the state. It suggests that the state, in the exercise of its parens patriae power, has a special responsibility to protect children, even from their parents. The state's interest in protecting children has frequently been characterized as "compelling" and has been drawn on to justify a variety of child protective measures that constrain the liberty of parents and children alike. "Parents may be free," declared the Supreme Court in prince v. massachusetts (1944), "to become martyrs themselves. But it does not follow that they are free, under free and identical circumstances, to make martyrs of their children before they reach the age of full and legal discretion when they can make that choice for themselves."

Any one of these three principles, if taken very far, cuts deeply into the others. For example, to the extent that children, as individuals, are given autonomy rights, limits are necessarily imposed on parental rights to control their behavior or socialization. Recognition of child autonomy also limits the state's right to constrain a child's conduct in circumstances where adult conduct could not be similarly constrained. Some rights of child autonomy would disable the state from having special protective legislation for children. Broad interpretation of the state's parens patriae power to intervene to protect children necessarily will diminish both the parental role in child-rearing and the child's role in decision making. Similarly, an expansive interpretation of parents' rights to control and govern their children necessarily limits the state's ability to protect children, or to ensure child autonomy.

The Supreme Court's decisions concerning children's rights evidence these tensions. For example, the Tinker decision, emphasizing child autonomy, declared that children have First Amendment rights to engage in peaceful political protest within the schools. On the other hand, the Ginsberg decision, emphasizing state protection of children, determined that the state could criminally punish the sale to minors of sexually explicit materials that an adult would have a constitutional right to receive. (See obscenity.) In its decisions concerning juvenile delinquency proceedings, the Court has extended a broad range of procedural rights to minors, and yet also determined that a juvenile court need not provide an accused young person with trial by jury. In parham v. j. r. (1979) the court held that due process does not require a hearing before the commitment of a minor by a parent to a state mental hospital. similarly, although thePierce and Yoder opinions emphasized the primacy of the parental role in child-rearing, Prince, in enforcing a child labor law, emphasized the state's parens patriae obligation to protect children.

The Supreme Court's decisions involving the abortion rights of minors suggest that a state may not give parents an absolute "veto" over a pregnant minor's decision to have an abortion (planned parenthood of central missouri v. danforth, 1976), but may require parental notification, at least for younger pregnant teenagers still living at home (H. L. v. Matheson, 1981). And in Planned Parenthood v. Ashcroft (1983) the Court upheld a state law requiring either parental or judicial consent to a minor's abortion; under the law the court must approve the abortion if the minor is sufficiently mature to make the abortion decision, or, alternatively, if the abortion is in the minor's best interests.

In sum, the Constitution has not been interpreted to prohibit the state from treating children differently from adults. Because children often lack adult capacity and maturity and need protection, and because of the special relationship of children to their families, giving children the same rights and obligations as adults would often do them a substantial disservice. To assume adult roles, children need to be socialized. The Constitution does not prohibit the use of state or parental coercion in this task of socialization. But, because ours is a society where adults are socialized for autonomous choice, there are necessarily some limits, even for children. In determining the contour of children's constitutional rights, then, the Supreme Court appears to be seeking to recognize the moral autonomy of children as individuals without abandoning children to their rights.

Robert H. Mnookin
(1986)

Bibliography

Hafen, Bruce C. 1976 Children's Liberation and the New Egalitarianism: Some Reservations about Abandoning Youth to Their "Rights." Brigham Young University Law Review 1976:605–658.

Mnookin, Robert H. 1978 Child, Family and State. Boston: Little, Brown.

——, ed. 1985 In the Interest of Children. New York: W. H. Freeman & Co.

Teitelbaum, Lee E. 1980 Foreword: The Meaning of Rights of Children. New Mexico Law Review 10:235–253.

Wald, Michael S. 1979 Children's Rights: A Framework for Analysis. University of California, Davis, Law Review 12: 255–282.

Youth Law Center 1982 Legal Rights of Children in theUnited States of America. Columbia Human Rights Law Review 13:675–743.